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Billing Code: 6325-39-P
OFFICE OF PERSONNEL MANAGEMENT
5 CFR parts 315, 432 and 752
RIN 3206–AN60
Probation on Initial Appointment to a Competitive Position, Performance-Based
Reduction in Grade and Removal Actions and Adverse Actions
AGENCY: Office of Personnel Management.
ACTION: Proposed rule.
SUMMARY: The Office of Personnel Management (OPM) is issuing proposed
regulations governing probation on initial appointment to a competitive position,
performance-based reduction in grade and removal actions, and adverse actions. The
proposed rule will effect a revision of OPM’s regulations to make procedures relating to
these subjects more efficient and effective. The proposed rule also amends the regulations
to incorporate other statutory changes and technical revisions.
DATES: Comments must be received on or before [Insert date 30 days after date of
publication in the Federal Register].
ADDRESSES: You may submit comments, identified by the docket number or
Regulation Identifier Number (RIN) for this proposed rulemaking, by any of the
following methods:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for
sending comments.
This document is scheduled to be published in theFederal Register on 09/17/2019 and available online athttps://federalregister.gov/d/2019-19636, and on govinfo.gov
Instructions: All submissions must include the agency name and docket number or RIN
for this rulemaking. Please arrange and identify your comments on the regulatory text by
subpart and section number; if your comments relate to the supplementary information,
please refer to the heading and page number. All comments received will be posted
without change, including any personal information provided. Please ensure your
comments are submitted within the specified open comment period. Comments received
after the close of the comment period will be marked “late,” and OPM is not required to
consider them in formulating a final decision. Before acting on this proposal, OPM will
consider and respond to all comments within the scope of the regulations that we receive
on or before the closing date for comments. Changes to this proposal may be made in
light of the comments we receive.
FOR FURTHER INFORMATION CONTACT:
Timothy Curry by e-mail at employeeaccountability@opm.gov or by telephone at (202)
606-2930.
SUPPLEMENTARY INFORMATION:
The Office of Personnel Management (OPM) is proposing revisions to regulations
governing probation on initial appointment to a competitive position; performance-based
reduction in grade and removal actions; and adverse actions under statutory authority
vested in it by Congress in 5 U.S.C. 3321, 4305, 4315, 7504, 7514 and 7543. The
regulations will assist agencies in carrying out, consistent with law, certain of the
President’s directives to the Executive Branch in Executive Order 13839 that are not
currently enjoined, and update current procedures to make them more efficient and
effective. The proposed regulations also will update references and language due to
statutory changes; and clarify procedures and requirements to support managers in
addressing unacceptable performance and promoting employee accountability for
performance-based reduction-in-grade, removal actions and adverse actions. The
proposed regulations support agencies in implementing their plans to maximize employee
performance as required by Office of Management and Budget (OMB) M-17-22 (April
12, 2017) and elements of the President’s Management Agenda relating to the Workforce
for the 21st Century.
OPM is aware of the judicially-imposed limitations on implementing other
portions of Executive Order 13839. OPM has and will continue to comply fully with the
injunction, and will not issue regulations implementing the invalidated parts of the
Executive Order as long as the judicial injunction is in place. OPM will heed the court’s
reaffirmation that “Congress has clearly vested OPM with the authority to ‘execut[e],
administer[ ], and enforc[e] the civil service rules and regulations of the President and
the Office and the laws governing the civil service . . .” and with the authority to ‘aid[ ]
the President, as the President may request, in preparing such civil service rules as the
President prescribes.’” OPM further relies upon the court’s statement that, “given the
wellsprings of authority that OPM enjoys in this area, OPM can surely receive directions
from the President to promulgate regulations that are consistent with the rights and duties
that the FSLMRS or CSRA prescribe, and setting aside the invalidity of some of the
underlying substantive mandates.” American Federation of Government Employees,
AFL-CIO v. Trump, 318 F. Supp. 3d 370, 438 (D.D.C. 2018). OPM is proposing these
regulations under its congressionally-granted authority to regulate the Parts that it
proposes to revise subject to the notice-and-comment process set forth in the
Administrative Procedure Act, and mindful of the President’s expressed policy direction.
The Case for Action:
“* * * I call on Congress to empower every Cabinet Secretary with the authority to
reward good workers and to remove Federal employees who undermine the public trust
or fail the American people.”
With that statement on January 29, 2018, President Trump set a new direction for
promoting efficient and effective use of the Federal workforce---reinforcing Federal
employees should be both rewarded and held accountable for performance and conduct.
Merit system principles provide a framework for responsible behavior that is aligned with
the broader responsibility Federal government employees agree to when they take the
oath to preserve and defend the Constitution. In keeping with merit system principles, the
President’s Management Agenda (PMA) recognizes that Federal employees underpin
nearly all the operations of the Government, ensuring the smooth functioning of our
democracy. The Federal personnel system needs to keep pace with changing workplace
needs and return to its root principles. Notably, as demonstrated in the Federal Employee
Viewpoint Survey, a majority of both employees and managers agree that the
performance management system fails to reward the best and address unacceptable
performance. Finally, the PMA calls for agencies to establish processes that help
agencies retain top employees and efficiently remove those who fail to perform or to
uphold the public’s trust.
Prior to establishment of the PMA, the Office of Management and Budget (OMB)
issued a memorandum to agencies on April 12, 2017 entitled “M-17-22 – Comprehensive
Plan for Reforming the Federal Government and Reducing the Federal Civilian
Workforce.” M-17-22 called on agencies to take near-term actions to ensure that the
workforce they hire and retain is as effective as possible. OMB called on agencies to
determine whether aspects of their current policies and practices present barriers to hiring
and retaining the workforce necessary to execute their missions as well as appropriately
managing it and, if necessary, removing poor performers and employees who commit
misconduct. Notably, M-17-22 directed agencies to ensure that managers have the tools
and support they need to manage performance and conduct effectively to achieve high-
quality results for the American people.
More recently, E.O. 13839 notes that merit system principles call for holding
Federal employees accountable for performance and conduct. The merit system
principles state that employees should maintain high standards of integrity, conduct, and
concern for the public interest, and that the Federal workforce should be used efficiently
and effectively. They further state that employees should be retained based on the
adequacy of their performance, inadequate performance should be corrected, and
employees should be separated who cannot or will not improve their performance to meet
required standards. E.O. 13839 further notes that implementation of America’s civil
service laws has fallen far short of these ideals. It acknowledged that the Federal
Employee Viewpoint Survey has consistently found that less than one-third of Federal
employees believe that the Government deals with poor performers effectively. E.O.
13839 finds that failure to address unacceptable performance and misconduct undermines
morale, burdens good performers with subpar colleagues, and inhibits the ability of
executive agencies to accomplish their missions.
E.O. 13839 requires executive agencies (as defined in section 105 of title 5, U.S.
Code, excluding the Government Accountability Office) to facilitate a Federal
supervisor’s ability to promote civil servant accountability while simultaneously
recognizing employee’s procedural rights and protections. Agencies should recognize
and reward good performers, while unacceptable performers should be separated if they
do not improve their performance to meet the required standards. A probationary period
is one effective tool to evaluate a candidate’s potential to be an asset to an agency before
the candidate’s appointment becomes final. Therefore, probationary periods, as the final
step in the hiring process of new employees, should be used to the greatest extent
possible to assess how well they are performing the duties of their jobs; and instances of
poor performance and misconduct should be dealt with promptly.
OPM is proposing changes to regulations to implement those requirements of
E.O. 13839 not judicially enjoined as well as to implement the vision of the PMA and the
objectives of M-17-22. These proposed changes not only support agency efforts in
implementing E.O. 13839, the PMA, and M-17-22, but also will facilitate the ability of
agencies to deliver on their mission and on providing service to American people.
Ultimately, these changes support President Trump’s goal of effective stewardship of
taxpayers’ money by our government.
Data Collection of Adverse Actions
Section 6 of E.O. 13839 outlines certain types of data for agencies to collect and
report to OPM as of fiscal year 2018. To enhance public accountability of agencies,
OPM will collect and, consistent with applicable law, publish the information received
from agencies aggregated at a level necessary to protect personal privacy. OPM may
withhold particular information if publication would unduly risk disclosing information
protected by law, including personally identifiable information. Section 6 requires
annual reporting of various categories of data, including: (1) the number of civilian
employees in a probationary period or otherwise employed for a specific term who were
removed by the agency; (2) the number of civilian employees reprimanded in writing by
the agency; (3) the number of civilian employees afforded an opportunity period by the
agency under section 4302(c)(6) of title 5, United States Code, breaking out the number
of such employees receiving an opportunity period longer than 30 days; (4) the number of
adverse actions taken against civilian employees by the agency, broken down by type of
adverse action, including reduction in grade or pay (or equivalent), suspension, and
removal; (5) the number of decisions on proposed removals by the agency taken under
chapter 75 of title 5, United States Code, not issued within 15 business days of the end of
the employee reply period; (6) the number of adverse actions by the agency for which
employees received written notice in excess of the 30 days prescribed in section
7513(b)(1) of title 5, United States Code; (7) the number and key terms of settlements
reached by the agency with civilian employees in cases arising out of adverse actions;
and (8) the resolutions or outcomes of litigation about adverse actions involving civilian
employees reached by the agency.
On July 5, 2018, OPM issued guidance for implementation of E.O. 13839. This
guidance included instructions for each department or agency head to coordinate the
collection of data from their components and compile one consolidated report for
submission to OPM using the form attached to the guidance memo. Forms must be
submitted electronically to OPM via e-mail at employeeaccountability@opm.gov
generally no later than 60 days following the conclusion of each fiscal year. In lieu of
outlining the data collection requirements in OPM regulations, OPM will issue reminders
of this requirement annually and provide periodic guidance consistent with the
requirements of E.O. 13839.
5 CFR PART 315, SUBPART H – PROBATION ON INITIAL APPOINTMENT
TO A COMPETITIVE POSITION
Section 2(i) of E.O. 13839 provides that a probationary period should be used as
the final step in the hiring process of a new employee. The E.O. further notes that
supervisors should use that period to assess how well an employee can perform the duties
of a job. OPM guidance has stated previously that the probationary period is the last and
crucial step in the examination process. The probationary period is intended to give the
agency an opportunity to assess, on the job, an employee’s overall fitness and
qualifications for continued employment and permit the termination, without Chapter 75
procedures, of an employee whose performance or conduct does not meet acceptable
standards to deliver on the mission. Thus it provides an opportunity for supervisors to
address problems in an expeditious manner and avoid long-term problems inhibiting
effective service to the American people. Employees may be terminated from
employment during the probationary period for reasons including demonstrated inability
to perform the duties of the position, lack of cooperativeness, or other unacceptable
conduct or poor performance. To achieve the objective of maximizing the effectiveness
of this probationary period, OPM believes that timely notifications to supervisors
regarding probationary periods can be a useful tool for agencies and should be
used. OPM is proposing amendments to regulations at Subpart H of 5 CFR part 315 to
require agencies to notify supervisors that an employee’s probationary period is ending,
at least three months or 90 days prior to expiration of the probationary period, and then
again one month or 30 days prior to expiration of the probationary period, and advise a
supervisor to make an affirmative decision regarding the employee’s fitness for continued
employment or otherwise take appropriate action. OPM believes this requirement will
assist agencies in making more effective use of the probationary period. Agencies have
discretion to determine the method for making this communication, but are encouraged to
make use of existing automated tools to facilitate timely notifications.
5 CFR Part 432 – Performance-Based Reduction In Grade And Removal Actions
Section 432.101 Statutory authority
Part 432 applies to reduction in grade and removal of covered employees based
on performance at the unacceptable level. Congress enacted chapter 43, in part, to create
a simple, dedicated, though not exclusive, process for agencies to use in taking adverse
actions based on unacceptable performance. Since that time however, chapter 43 has not
worked as well as Congress intended. In particular, interpretations of chapter 43 have
made it difficult for agencies to take actions against unacceptable performers and to have
those actions upheld.
Section 432.104 Addressing unacceptable performance
The proposed rule at § 432.104 clarifies that, other than those requirements listed,
there is no specific requirement regarding the nature of any assistance provided during an
opportunity period, and is not determinative of the ultimate outcome with respect to
reduction in grade or pay, or a removal.
The proposed rule also states that no additional performance improvement period
or similar informal period to demonstrate acceptable performance to meet the required
performance standards shall be provided prior to or in addition to the opportunity period
under this part. This change supports the stated principles of E.O. 13839 which provide
that removing unacceptable performers should be a straightforward process furthering
effective stewardship of taxpayer money. Establishing limits on the opportunity to
demonstrate acceptable performance by precluding additional opportunity periods beyond
what is required by law encourages efficient use of the procedures under chapter 43 and
furthers effective delivery of agency mission while still providing employees sufficient
opportunity to demonstrate acceptable performance as required by law.
The proposed rule is intended to clarify the requirements in chapter 43 of title 5 of
the United States Code. The goal of these amendments, consistent with E.O. 13839, is to
streamline civil service removal procedures related to unacceptable performance. Nothing
in the proposed amendments to 5 CFR part 432 should be construed to relieve agencies of
their continuing obligations under Federal law, e.g., 5 U.S.C. 6384 and 29 U.S.C. 791(g).
Finally, we note that 5 U.S.C. 2301(b)(2) provides that employees should receive fair and
equitable treatment without regard to political affiliation, race, color, religion, national
origin, sex, marital status, age, and handicapping condition, and with proper regard for
their privacy and rights. All personnel actions must meet this statutory requirement.
Section 432.105 Proposing and taking action based on unacceptable performance
5 U.S.C. 4302(c)(5) provides for “assisting employees in improving unacceptable
performance;” and 5 U.S.C. 4302(c)(6) provides for “reassigning, reducing in grade, or
removing employees who continue to have unacceptable performance but only after an
opportunity to demonstrate acceptable performance.” The proposed rule de-links 5
U.S.C. 4302(c)(5) and (6) by clarifying in § 432.105 that the opportunity to demonstrate
acceptable performance required prior to initiating an action pursuant to 5 U.S.C. 4303
may include any and all performance assistance measures taken during the performance
appraisal period to assist employees pursuant to 5 U.S.C. 4302(c)(5), not just those taken
during the formal opportunity period.
Section 432.108 Settlement agreements
Section 5 of E.O. 13839 establishes a new requirement that an agency shall not
agree to erase, remove, alter, or withhold from another agency any information about a
civilian employee’s performance or conduct in that employee’s official personnel
records, including an employee’s Official Personnel Folder and Employee Performance
File, as part of, or as a condition to, resolving a formal or informal complaint by the
employee or settling an administrative challenge to an adverse action. Such agreements
have traditionally been referred to as “clean record” agreements. This new requirement is
intended to promote the high standards of integrity and accountability within the Federal
workforce by requiring agencies to maintain personnel records that reflect complete
information, and not to alter the information contained in those records in connection
with a formal or informal complaint or adverse action. It is further intended to ensure
that those records are preserved so that agencies can make appropriate and informed
decisions regarding an employee’s qualification, fitness, and suitability as applicable to
future employment.
Section 5 requirements should not be construed to prevent agencies from
correcting records of an action taken by the agency illegally or in error. In such cases, an
agency has the authority -- unilaterally or by agreement -- to modify an employee’s
personnel file to remove inaccurate information or the record of an erroneous or illegal
action. Specifically, the proposed rule states that the Section 5 requirements of E.O.
13839 should not be construed to prevent agencies from taking corrective action should it
come to light, including during or after the issuance of an adverse personnel action, that
the information contained in a personnel record is not accurate or records an action taken
by the agency illegally or in error. In such cases, an agency would have the authority,
unilaterally or by agreement, to modify an employee’s personnel file to remove
inaccurate information or the record of an erroneous or illegal action. An agency may
take such action even if an appeal/complaint has been filed relating to the information
that the agency determines to be inaccurate or to reflect an action taken illegally or in
error. In all events, however, the agency must ensure that it removes only information
that the agency itself has determined to be inaccurate or to reflect an action taken illegally
or in error. An agency should report any agreements relating to removal of such
information as part of its annual report to the OPM Director, as required by Section 6 of
E.O. 13839. Documents subject to withdrawal or modification could include, for
example, an SF-50 issuing a disciplinary or performance-based action, a decision
memorandum accompanying such action, or an employee performance appraisal. See
discussion above concerning “Data Collection of Adverse Actions.” Section 5
requirements should also not be construed to prevent agencies from entering into partial
clean record settlements with regard to information provided to non-Federal employers.
Finally, to the extent that an employee’s personnel file or other agency records contain a
proposed action that is subsequently cancelled, an agency would have the authority to
remove that action from the employee’s personnel file or other agency files. The
proposed rule states that when persuasive evidence comes to light prior to the issuance of
a final agency decision on an adverse personnel action casting doubt on the validity of the
action or the ability of the agency to sustain the action in litigation, an agency may decide
to cancel or vacate the proposed action. Additional information may come to light at any
stage of the process prior to final agency decision including during an employee response
period. To the extent an employee’s personnel file or other agency records contain a
proposed action that is subsequently cancelled, an agency would have the authority to
remove that action from the employee’s personnel file or other agency files. However,
the requirements described in Section 5 would continue to apply to any accurate
information about the employee’s performance or conduct which comes to light prior to
issuance of a final agency decision on an adverse action. Based on the foregoing, the
proposed rule at § 432.108 reflects E.O. 13839’s restrictions on settlement agreements
arising from chapter 43 actions.
Technical Amendments
The proposed rule corrects the spelling of the word “incumbents” within §
432.103(g) and the word “extension” at § 432.105(a)(4)(i)(B)(3). OPM proposes to
replace the term “handicapping condition” with “disability” at § 432.105(a)(4)(i)(B)(4) to
bring the definition into conformance with 29 U.S.C. 705. In this rule, OPM also revises
§ 432.105(a)(4)(i)(C) to correctly identify the office that an agency shall contact if it
believes that an extension of the advance notice period is necessary for a reason other
than those listed in § 432.105(a)(4)(i)(B). OPM proposes to revise § 432.106(b)(1) to
replace “i.g.” with “i.e.” within the parenthetical concerning non-exclusion by the parties
to a collective bargaining agreement. Finally, OPM corrects the use of the word
“affected” versus “effected” within § 432.107(b).
5 CFR Part 752 – Adverse Actions
Subpart A — Discipline of Supervisors Based on Retaliation Against
Whistleblowers
5 U.S.C. 7515 provides agencies the ability to deal with retaliation by supervisors
for whistleblowing. The regulations reinforce the responsibility of agencies to protect
whistleblowers from retaliation. These requirements are significant because of the
essential protections they provide. Prohibited personnel actions are not consistent with
the notion of a system based on merit and failure to observe these prohibitions must be
addressed promptly and resolutely.
Based on this need, OPM is proposing a new addition to the current adverse
action system. We are revising our regulations to incorporate the changes created by the
statute and ensure that agencies understand how to meet the additional requirements in
connection with prohibited personnel actions. This new proposed rule falls under subpart
A of 5 CFR part 752 as “Discipline of supervisors based on retaliation against
whistleblowers.” The proposed language implements the statutory authority and
procedures of 5 U.S.C. 7515 which require that certain actions be taken against a
supervisor who retaliates against a whistleblower. These provisions reinforce the
principle that increased accountability is warranted in situations where a supervisor
commits a prohibited personnel action against an employee of an agency, in violation of
paragraph (8), (9), or (14) of 5 U.S.C. 2302(b). The proposed rule subjects an action
taken under subpart A to many of the same procedural requirements as an action taken
under subparts B, D, and F of this chapter. For example, Subpart A incorporates the
standard for action from each of the related subparts in this chapter. However, the
proposed rule also includes some key exceptions. These proposed regulations help to
undergird and support agencies in meeting their requirements to take action against any
supervisor who retaliates against whistleblowers. The following section identifies the
major additions proposed by this subpart and briefly describes the purpose of each
addition.
Section 752.101 Coverage
The proposed rule describes the adverse actions covered and defines key terms
used throughout the subchapter. The proposed rule includes a definition for the term
“business day.” This addition is necessary to implement the 15 business day decision
period described in E.O. 13839. The proposed rule also includes a definition for
“insufficient evidence.” OPM defines this new term as evidence that fails to meet the
substantial evidence standard described in 5 CFR § 1201.4(p).
§ 752.102 Standard for action and penalty determination.
5 U.S.C. 7515 incorporates many of the procedural elements of 5 U.S.C. sections
7503, 7513 and 7543, to include the standards of action applied to each type of adverse
action. For supervisors not covered under subchapter V of title 5, the proposed rule
applies the efficiency of the service standard. For supervisors who are members of the
Senior Executive Service, the proposed rule defines the standard of action as misconduct,
neglect of duty, malfeasance, or failure to accept a directed reassignment, or to
accompany a position in a transfer of function.
5 U.S.C. 7515 enhances statutory protection for whistleblowers through the
creation of proposed mandatory penalties. Specifically, for the first incident of a
prohibited personnel action, an agency is required to propose the penalty at a level no less
than a 3-day suspension. Further, the agency may propose an additional action, including
a reduction in grade or pay. For the second incident of a prohibited personnel action, an
agency is required to propose that the supervisor be removed.
Section 752.103 Procedures
The proposed rule establishes the procedures to be utilized for actions taken under
this subpart. The procedures in the subpart are the same as those described in 5 U.S.C.
sections 7503, 7513 and 7543, with the exception of provisions concerning advance
notice and the reply period. Agencies must implement the related procedures on taking
action, which have a shortened time period and require agencies to issue a final decision
on a proposed action against a supervisor after the end of the 14-day advance notice
period. Under this subpart, supervisors against whom an action is proposed are entitled
to no more than 14 days to answer after receipt of the proposal notice. At the conclusion
of the 14-day reply period, the agency shall carry out the proposed action if the
supervisor fails to provide evidence or provides evidence that the head of the agency
deems insufficient. Notably, the proposed rule also includes the requirement that, if the
head of an agency is responsible for determining whether a supervisor has committed a
prohibited personnel action, that responsibility may not be delegated.
Finally, the proposed rule at § 752.103 (d) includes language that, to the extent
practicable, an agency should issue the decision on a proposed removal under this subpart
within 15 business days of the conclusion of the employee’s opportunity to respond.
Section 752.104 Settlement agreements
The proposed language in this section establishes the same requirement that is
detailed in the proposed rule changes at § 432.108, Settlement agreements. Please see
discussion in § 432.108.
Subpart B—Regulatory Requirements for Suspension for 14 Days or Less
This subpart addresses the procedural requirements for suspensions of 14 days or
less for covered employees.
Section 752.201 Coverage
Pursuant to the creation of subpart A within the proposed rule, § 752.201(c)
reflects an exclusion for actions taken under 5 U.S.C. 7515.
Section 752.202 Standard for action and penalty determination
While the standard for action under this subpart remains unchanged, the proposed
rule makes clear that an agency is not required to use progressive discipline under this
subpart. Further, OPM has decided to adopt formally by regulation in this section the
standard applied by MSPB in Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981)
to removals, suspensions and demotions, including suspensions of fewer than 15 days.
Specifically, the proposed rule adopts the requirement to propose and impose a penalty
that is within the bounds of tolerable reasonableness. This is a principle that is embedded
deeply in Federal civil-service law. Arbitrators are required to defer to an agency
decision, and may not mitigate a penalty unless it is beyond the bounds of tolerable
reasonableness. We now make it clear that this standard applies not only to those actions
taken under 5 U.S.C. §7513, but apply as well to those taken under 5 U.S.C. §7503. Any
collective-bargaining proposal in conflict with this government-wide regulation will be
contrary to law and non-negotiable. There is no legal principle in the Federal
Government that requires agencies to impose the least penalty to rehabilitate an
employee. A proposed penalty is in the sole and exclusive discretion of the proposing
official, and the penalty decision is in the sole and exclusive discretion of the deciding
official, subject to appellate or other review procedures prescribed in law and cannot be
the subject of collective bargaining.
The penalty for an instance of misconduct should be tailored to the facts and
circumstances of each case. Further, employees should be treated equitably.
Nevertheless, conduct that justifies discipline of one employee at one time by a particular
deciding official does not necessarily justify the same or similar disciplinary decision for
a different employee at a different time. So agencies should consider appropriate
comparators when evaluating a potential disciplinary action. The Court of Appeals for
the Federal Circuit has held that an agency need only provide “proof that the proffered
comparator was in the same work unit, with the same supervisor, and was subjected to
the same standards governing discipline.” Miskill v. Social Security Administration, 863
F.3d 1379 (Fed. Cir. 2017). It should not tie the hands of a different deciding official at a
different time or in a different context, or under different circumstances. We are
proposing adoption of the Miskill test. This reinforces the key principle that each case
stands on its own factual and contextual footing. Finally, among other relevant factors,
an agency should consider an employee’s disciplinary record and past work record,
including all prior misconduct, when taking an action under this subpart. These
guidelines reflect established principles, but stress management discretion to promote
efficient Government while protecting the interests of all involved.
With respect to penalty determination, it is also noteworthy that some agencies
develop and use tables of penalties to assist supervisors in identifying the level of
discipline that may be appropriate to an individual case. The creation and use of a table
of penalties is not required by statute, case law or OPM regulation, and OPM does not
provide written guidance on this topic. The applicable standard, “to promote the
efficiency of the service,” is broad and supple enough to encompass all occurrences that
may occasion an adverse action. Thus, agencies have the ability to address misconduct
appropriately without a table of penalties, and with sufficient flexibility to determine the
appropriate penalty for each instance of misconduct. Tables of penalties may create
significant drawbacks to the viability of a particular action and to effective management.
Specifically, tables of penalties, by creating a range of penalties for an offense, limit the
scope of management’s discretion to tailor the penalty to the facts and circumstances of a
particular case by excluding certain penalties along the continuum. Agencies that specify
a range of penalties should expect that adjudicators may be, and have been, impervious to
agency pleas that someone who holds a particular position may not be restored to the
workplace. Although the law permits the agency to impose the maximum reasonable
penalty, some adjudicators have responded that the existence of an agency promulgated
range of penalties belies this claim. Although such adjudications are contrary to and
undermine settled legal principles, they resist further administrative or judicial review of
penalty decisions.
Further, OPM encourages managers to think carefully and coherently about when
and how to impose discipline in a way that fosters an effective and efficient workplace, in
the best interests of all employees and the agency’s mission. By contrast, tables of
penalties can foster a “by-the-numbers” approach in which managers may hide behind a
chart imposed from above rather than take direct responsibility for their workplace.
A further risk of having an agency table of penalties is that a supervisor may
apply it so inflexibly as to impair consideration of other factors relevant to an individual
case. This type of rigid application of a table of penalties runs counter to the overall
directive of Douglas to consider all of the criteria that may apply to an individual set of
factual circumstances. A table of penalties does not, and should not, replace supervisory
judgment. It is vital that supervisors use independent judgment, take appropriate steps in
gathering facts, and conduct a thorough analysis to decide the appropriate penalty.
However, once an agency establishes a table of penalties, it will be held accountable for
striking a balance between ensuring that supervisors use their best judgment in applying
the full spectrum of Douglas factors, with accountability for ensuring a level of
consistency with the range of penalties described for a particular charge within the
agency’s table. For that reason, the proposed amendments to this section emphasize that
an agency is not required to use progressive discipline and that the penalty for an instance
of misconduct should be tailored to the facts and the circumstances, in lieu of the type of
formulaic and rigid penalty determination that frequently results from agency publication
of tables of penalties.
Finally, there is a significant body of decisional law concerning elucidating
required manners of labelling and charging misconduct with attendant proof of an
employee’s state of mind. See for example, Nazelrod v. Department of Justice, 43 F.3d
663 (Fed. Cir. 1994). This type of common-law pleading is unusual in American law and
is burdensome on agencies, spawning reams of costly training material and charging
guides. It also slows the charging and decision making process. A table of penalties can
exacerbate these problems further by implying that if an employee acts in a way that does
not appear in a table of penalties’ list of “offenses,” the behavior is beyond the agency’s
capacity to charge and penalize.
In short, there is no substitute for managers thinking independently and carefully
about each incident as it arises, and, as appropriate, proposing or deciding the best
penalty to fit the circumstances. Progressive discipline and table of penalties are inimical
to good management principles. Finally, the proposed rule at § 752.202 (f) adds
language stating that a suspension should not be a substitute for removal in circumstances
in which removal would be appropriate. Agencies should not require that an employee
have previously been suspended or demoted before a proposing official may propose
removal, except as may be appropriate under applicable facts.
Section 752.203 Procedures
Section 752.203(b) discusses the requirements for a proposal notice issued under
this subpart. This section provides that the notice of proposed action must state the
specific reason(s) for the proposed action, and inform the employee of his or her right to
review the material which is relied on to support the reasons for action given in the
notice. The proposed rule includes language that the notice must also provide detailed
information with respect to any right to appeal the action pursuant to Pub. L. 115-91
section 1097(b)(2)(A); specifically, the forum in which the employee may file an appeal,
and any limitations on the rights of the employee that would apply because of the forum
in which the employee decides to file. This additional language implements the
requirement within Pub. L. 115-91 section 1097(b)(2)(A), which mandates that
information on whistleblower appeal rights be included in any notice provided to an
employee under 5 U.S.C. 7503(b)(1), 7513(b)(1), or 7543(b)(1).
Finally, the proposed language in § 752.203(h) establishes the same requirement
that is detailed in the proposed rule changes at § 432.108, Settlement agreements.
See discussion in § 432.108.
Subpart D—Regulatory Requirements for Removal, Suspension for More Than 14
Days, Reduction in Grade or Pay, or Furlough for 30 Days or Less
This subpart addresses the procedural requirements for removals, suspensions for
more than 14 days, including indefinite suspensions, reductions in grade, reductions in
pay, and furloughs of 30 days or less for covered employees.
Section 752.401 Coverage
Pursuant to the creation of subpart A within the proposed rule, § 752.401(b)(14)
reflects an exclusion for actions taken under 5 U.S.C. 7515.
Section 752.401(c) identifies employees covered by this subpart. The proposed
rule at § 752.401(c)(2) updates coverage to include an employee in the competitive
service who is not serving a probationary or trial period under an initial appointment or,
except as provided in section 1599e of title 10, United States Code, who has completed 1
year of current continuous service under other than a temporary appointment limited to 1
year or less. This language has been updated to align with 5 U.S.C. 7511(a)(1)(A)(ii).
Section 752.402 Definitions
The proposed rule includes a definition for the term “business day.” This addition
is necessary to implement the 15 business day decision period described in E.O. 13839.
Section 752.403 Standard for action and penalty determination
As with the rule changes proposed for § 752.202, the standard for action under
this subpart remains unchanged and incorporates a penalty determination based on the
principles of E.O. 13839. Please see discussion in § 752.202. In addition, the proposed
rule at § 752.403 adds paragraph (f) which states that a suspension or a reduction in pay
or grade should not be a substitute for removal in circumstances in which removal would
be appropriate. Agencies should not require that an employee have previously been
suspended or reduced in pay or grade before a proposing official may propose removal,
except as may be appropriate under applicable facts.
Section 752.404 Procedures
Section 752.404(b) discusses the requirements for a notice of proposed action
issued under this subpart. Specifically, § 752.404(b)(1) provides that, to the extent an
agency, in its sole and exclusive discretion deems practicable, agencies should limit
written notice of adverse actions taken under this subpart to the 30 days prescribed in 5
U.S.C. 7513(b)(1). Any notice period greater than 30 days must be reported to OPM.
The proposed rule also includes the requirement that the notice must provide detailed
information with respect to any right to appeal the action pursuant to Pub. L. 115-91
section 1097(b)(2)(A); specifically, the forum in which the employee may file an appeal,
and any limitations on the rights of the employee that would apply because of the forum
in which the employee decides to file. This additional language implements the
requirement in Pub. L. 115-91 section 1097(b)(2)(A), which mandates that information
on whistleblower appeal rights be included in any notice provided to an employee under
5 U.S.C. 7503(b)(1), 7513(b)(1), or 7543(b)(1).
The proposed rule at § 752.404(b)(3)(iv) also incorporates by reference the
provisions of 5 U.S.C. 6329b, the Administrative Leave Act of 2016, related to placing
an employee in a paid non-duty status during the advance notice period. Until OPM has
published the final regulation for 5 U.S.C. 6329b, and after conclusion of the agency
implementation period, in those rare circumstances where the agency determines that the
employee’s continued presence in the workplace during the notice period may pose a
threat to the employee or others, result in loss of or damage to Government property, or
otherwise jeopardize legitimate Government interests, an agency will continue to have as
an alternative the ability to place an employee in a paid, nonduty status for such time to
effect the action. Thereafter, an agency may use the provisions of 5 U.S.C. 6329b as
applicable.
Finally, the proposed rule at § 752.404(g) discusses the requirements for an
agency decision issued under this subpart. Specifically, the proposed rule at
§ 752.404(g)(3) includes new language that, to the extent practicable, an agency should
issue the decision on a proposed removal under this subpart within 15 business days of
the conclusion of the employee’s opportunity to respond to reflect a key principle of
E.O. 13839. These proposed changes facilitate timely resolution of adverse actions while
preserving employee rights.
Section 752.407 Settlement agreements
The proposed language in this section establishes the same requirement that is
detailed in the proposed rule changes at § 432.108, Settlement agreements. See
discussion regarding § 432.108 above.
Subpart F—Regulatory Requirements for Taking Adverse Actions Under the
Senior Executive Service
This subpart addresses the procedural requirements for suspensions for more than
14 days and removals from the civil service as set forth in 5 U.S.C. 7542.
Section 752.601 Coverage
Pursuant to the creation of subpart A within the proposed rule, § 752.601(b)(2)
reflects an exclusion for actions taken under 5 U.S.C. 7515.
Section 752.602 Definitions
The proposed rule includes a definition for the term “business day.” This addition
is necessary to implement the 15 business day decision period described in E.O. 13839.
Section 752.603 Standard for action and penalty determination
As with the rule changes proposed for §§ 752.202 and 752.403, the standard for
action under this subpart remains unchanged and incorporates a penalty determination
based on the principles of E.O. 13839. Please see discussion in § 752.202. In addition,
the proposed rule at § 752.603 adds paragraph (f) which states that a suspension or a
reduction in pay or grade should not be a substitute for removal in circumstances in
which removal would be appropriate. Agencies should not require that an employee have
previously been suspended or reduced in pay or grade before a proposing official may
propose removal, except as may be appropriate under applicable facts.
Section 752.604 Procedures
Section 752.604(b) discusses the requirements for a notice of proposed action
issued under this subpart. We have revised the language in this subpart to be consistent
with the advance notice period for general schedule employees. Specifically, §
752.604(b)(1) provides that, to the extent an agency, in its sole and exclusive discretion
deems practicable, agencies should limit written notice of adverse actions taken under
this subpart to the 30 days prescribed in 5 U.S.C. 7543(b)(1). Any notice period greater
than 30 days must be reported to OPM.
The proposed rule also includes additional language that the notice must provide
detailed information with respect to any right to appeal the action pursuant to Pub. L.
115-91 section 1097(b)(2)(A); specifically, the forum in which the employee may file an
appeal, and any limitations on the rights of the employee that would apply because of the
forum in which the employee decides to file. This additional language implements the
requirement within Pub. L. 115-91 section 1097(b)(2)(A), which mandates that
information on whistleblower appeal rights be included in any notice provided to an
employee under 5 U.S.C. 7503(b)(1), 7513(b)(1), or 7543(b)(1).
The proposed rule at § 752.604(b)(2)(iv) also incorporates by reference the
provisions of 5 U.S.C. 6329b, The Administrative Leave Act of 2016, related to placing
an employee in a paid non-duty status during the advance notice period. However, as
noted above, until OPM has published the final regulation for 5 U.S.C. 6329b, and after
conclusion of the agency implementation period, in those rare circumstances where the
agency determines that the employee’s continued presence in the workplace during the
notice period may pose a threat to the employee or others, result in loss of or damage to
Government property, or otherwise jeopardize legitimate Government interests, an
agency will continue to have as an alternative the ability to place an employee in a paid,
nonduty status for such time to effect the action. Thereafter, an agency may use the
provisions of 5 U.S.C. 6329b as applicable.
Finally, the proposed rule at § 752.604(g) discusses the requirements for an
agency decision issued under this subpart. Specifically, the proposed rule at §
752.604(g)(3) includes new language that, to the extent practicable, an agency should
issue the decision on a proposed removal under this subpart within 15 business days of
the conclusion of the employee’s opportunity to respond to reflect one of the key
principles of E.O. 13839.
Section 752.607 Settlement Agreements
The proposed language in this section establishes the same requirement that is
detailed in the proposed rule changes at §§ 432.108, 752.203 and 752.407. Please see
discussion regarding § 432.108 above.
Regulatory Flexibility Act
I certify that this regulation will not have a significant impact on a substantial
number of small entities because it applies only to Federal agencies and employees.
E.O. 13563 and E.O. 12866, Regulatory Review
Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits
of available regulatory alternatives and, if regulation is necessary, to select regulatory
approaches that maximize net benefits (including potential economic, environmental,
public health and safety effects, distributive impacts, and equity). Executive Order 13563
emphasizes the importance of quantifying both costs and benefits, of reducing costs, of
harmonizing rules, and of promoting flexibility. This rule has been designated a
“significant regulatory action,” under Executive Order 12866.
Executive Order 13771, Reducing Regulation and Controlling Regulatory Costs
This proposed rule is not expected to be subject to the requirements of E.O. 13771
(82 FR 9339, February 3, 2017) because this proposed rule is expected to be related to
agency organization, management, or personnel.
E.O. 13132, Federalism
This regulation will not have substantial direct effects on the States, on the
relationship between the National Government and the States, or on distribution of power
and responsibilities among the various levels of government. Therefore, in accordance
with Executive Order 13132, it is determined that this rule does not have sufficient
federalism implications to warrant preparation of a Federalism Assessment.
E.O. 12988, Civil Justice Reform
This regulation meets the applicable standard set forth in section 3(a) and (b)(2)
of Executive Order 12988.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local or tribal governments of
more than $100 million annually. Thus, no written assessment of unfunded mandates is
required.
Congressional Review Act
This action pertains to agency management, personnel and organization and does
not substantially affect the rights or obligations of non-agency parties and, accordingly, is
not a ‘rule’ as that term is used by the Congressional Review Act (Subtitle E of the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)). Therefore, the
reporting requirement of 5 U.S.C. 801 does not apply.
Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35)
This regulatory action will not impose any additional reporting or recordkeeping
requirements under the Paperwork Reduction Act.
List of Subjects in title 5 CFR Parts 351, 430, 432 and 752
5 CFR Part 315
Government employees.
5 CFR Part 432
Government employees
5 CFR Part 752
Government employees
Office of Personnel Management
_______________________________
Stephen Hickman
Federal Register Liaison
Accordingly, for the reasons stated in the preamble, OPM proposes to amend 5 CFR parts
315, 432 and 752 as follows:
PART 315-CAREER AND CAREER-CONDITIONAL EMPLOYMENT
1. Revise the authority citation for part 315 to read as follows:
AUTHORITY: 5 U.S.C. 1302, 2301, 2302, 3301, and 3302; E.O. 10577, 3 CFR, 1954-
1958 Comp. p. 218, unless otherwise noted; E.O. 13162, and E.O. 13839. Secs.
315.601 and 315.609 also issued under 22 U.S.C. 3651 and 3652. Secs. 315.602 and
315.604 also issued under 5 U.S.C. 1104. Sec. 315.603 also issued under 5 U.S.C.
8151. Sec. 315.605 also issued under E.O. 12034, 3 CFR, 1978 Comp. p.111. Sec.
315.606 also issued under E.O. 11219, 3 CFR, 1964-1965 Comp. p. 303. Sec.
315.607 also issued under 22 U.S.C. 2506. Sec. 315.608 also issued under E.O.
12721, 3 CFR, 1990 Comp. p. 293. Sec. 315.610 also issued under 5 U.S.C. 3304(c).
Sec. 315.611 also issued under 5 U.S.C. 3304(f). Sec. 315.612 also issued under E.O.
13473. Sec. 315.708 also issued under E.O.13318, 3 CFR, 2004 Comp. p. 265. Sec.
315.710 also issued under E.O. 12596, 3 CFR, 1987 Comp. p. 229. Subpart I also
issued under 5 U.S. C. 3321, E.O. 12107, 3 CFR, 1978 Comp. p. 264.
Subpart H–Probation on Initial Appointment to a Competitive Position
2. Revise § 315.803(a) to read as follows:
§ 315.803 Agency action during probationary period (general).
* * * * *
(a) The agency shall utilize the probationary period as fully as possible to determine the
fitness of the employee and shall terminate his or her services during this period if the
employee fails to demonstrate fully his or her qualifications for continued employment.
The agency must notify its supervisors that an employee’s probationary period is ending
at least three months or 90 days prior to the expiration of an employee’s probationary
period, and then again one month or 30 days prior to the expiration of the probationary
period, and advise a supervisor to make an affirmative decision regarding an employee’s
fitness for continued employment or otherwise take appropriate action.
* * * * *
PART 432—PERFORMANCE BASED REDUCTION IN GRADE AND
REMOVAL ACTIONS
3. Revise the authority citation for part 432 to read as follows:
Authority: 5 U.S.C. 4303, 4305.
* * * * *
4. Amend § 432.103 by revising paragraph (g) to read as follows:
* * * * *
(g) Similar positions mean positions in which the duties performed are similar in nature
and character and require substantially the same or similar qualifications, so that the
incumbents could be interchanged without significant training or undue interruption to
the work.
* * * * *
5. Revise § 432.104 to read as follows:
§ 432.104 Addressing unacceptable performance.
At any time during the performance appraisal cycle that an employee’s performance is
determined to be unacceptable in one or more critical elements, the agency shall notify
the employee of the critical element(s) for which performance is unacceptable and inform
the employee of the performance requirement(s) or standard(s) that must be attained in
order to demonstrate acceptable performance in his or her position. The agency should
also inform the employee that unless his or her performance in the critical element(s)
improves to and is sustained at an acceptable level, the employee may be reduced in
grade or removed. For each critical element in which the employee’s performance is
unacceptable, the agency shall afford the employee a reasonable opportunity to
demonstrate acceptable performance, commensurate with the duties and responsibilities
of the employee’s position. Other than the requirement described in 5 U.S.C.
4302(c)(5), there is no requirement regarding any assistance to be offered or provided by
the agency during the opportunity period. The nature of such assistance is not
determinative of a reduction in grade or pay, or a removal. No additional performance
assistance period or similar informal period shall be provided prior to or in addition to the
opportunity period provided under this section.
* * * * *
6. Amend § 432.105 by revising paragraphs (a)(1), (a)(4)(i)(B)(3) through (4) and
paragraph (a)(4)(i)(C) to read as follows:
§ 432.105 Proposing and taking action based on unacceptable performance.
(a)* * *
(1) Once an employee has been afforded a reasonable opportunity to demonstrate
acceptable performance pursuant to § 432.104, an agency may propose a reduction-in-
grade or removal action if the employee’s performance during or following the
opportunity to demonstrate acceptable performance is unacceptable in one or more of the
critical elements for which the employee was afforded an opportunity to demonstrate
acceptable performance. For the purposes of this section, the opportunity to demonstrate
acceptable performance includes measures taken during the opportunity period as well as
any other measures taken during the appraisal period for the purpose of assisting
employees pursuant to 5 U.S.C. 4302(c)(5). Agencies may satisfy the requirement to
provide assistance before or during the opportunity period.
* * * * *
(4)* * *
(i)* * *
(B)* * *
(3) To consider the employee’s answer if an extension to the period for an answer has
been granted (e.g., because of the employee’s illness or incapacitation);
(4) To consider reasonable accommodation of a disability;
* * * * *
(C) If an agency believes that an extension of the advance notice period is necessary for
another reason, it may request prior approval for such extension from the Manager,
Employee Accountability, Accountability and Workforce Relations, Employee Services,
Office of Personnel Management, 1900 E Street N.W., Washington, DC 20415.
* * * * *
7. Revise § 432.106(b)(1) to read as follows:
§ 432.106 Appeal and grievance rights.
* * * * *
(b) Grievance rights. (1) A bargaining unit employee covered under § 432.102(e) who
has been removed or reduced in grade under this part may file a grievance under an
applicable negotiated grievance procedure if the removal or reduction in grade action
falls within its coverage (i.e., is not excluded by the parties to the collective bargaining
agreement) and the employee is:
* * * * *
8. Revise § 432.107(b) to read as follows:
§ 432.107 Agency records.
* * * * *
(b) When the action is not effected. As provided at 5 U.S.C. 4303(d), if, because of
performance improvement by the employee during the notice period, the employee is not
reduced in grade or removed, and the employee’s performance continues to be acceptable
for one year from the date of the advanced written notice provided in accordance with §
432.105(a)(4)(i), any entry or other notation of the unacceptable performance for which
the action was proposed shall be removed from any agency record relating to the
employee.
* * * * *
9. Add § 432.108 to read as follows:
§ 432.108 Settlement agreements.
(a) Agreements to alter personnel records. An agency shall not agree to erase, remove,
alter, or withhold from another agency any information about a civilian employee’s
performance or conduct in that employee’s official personnel records, including an
employee’s Official Personnel Folder and Employee Performance File, as part of, or as a
condition to, resolving a formal or informal complaint by the employee or settling an
administrative challenge to an adverse action.
(b) Corrective action based on discovery of agency error. The requirements described in
paragraph (a) should not be construed to prevent agencies from taking corrective
action should it come to light, including during or after the issuance of an adverse
personnel action, that the information contained in a personnel record is not accurate or
records an action taken by the agency illegally or in error. In such cases, an agency would
have the authority, unilaterally or by agreement, to modify an employee’s personnel
record(s) to remove inaccurate information or the record of an erroneous or illegal action.
An agency may take such action even if an appeal/complaint has been filed relating to the
information that the agency determines to be inaccurate or to reflect an action taken
illegally or in error. In all events, however, the agency must ensure that it removes only
information that the agency itself has determined to be inaccurate or to reflect an action
taken illegally or in error. And an agency should report any agreements relating to the
removal of such information as part of its annual report to the OPM Director required by
Section 6 of E.O. 13839. Documents subject to withdrawal or modification could include,
for example, an SF-50 issuing a disciplinary or performance-based action, a decision
memorandum accompanying such action, or an employee performance appraisal.
(c) Corrective action based on discovery of material information prior to final agency
action. When persuasive evidence comes to light prior to the issuance of a final agency
decision on an adverse personnel action casting doubt on the validity of the action or the
ability of the agency to sustain the action in litigation, an agency may decide to cancel or
vacate the proposed action. Additional information may come to light at any stage of the
process prior to final agency decision including during an employee response period. To
the extent an employee’s personnel file or other agency records contain a proposed action
that is subsequently cancelled, an agency would have the authority to remove that action
from the employee’s personnel file or other agency records. The requirements described
in paragraph (a) would, however, continue to apply to any accurate information about the
employee’s conduct leading up to that proposed action or separation from Federal
service.
PART 752—ADVERSE ACTIONS
Subpart A—Discipline of Supervisors Based on Retaliation Against Whistleblowers
Subpart B—Regulatory Requirements for Suspension for 14 Days or Less
Sec.
752.201 Coverage.
752.202 Standard for action and penalty determination.
752.203 Procedures.
Subpart C [Reserved]
Subpart D—Regulatory Requirements for Removal, Suspension for More Than 14
Days, Reduction in Grade or Pay, or Furlough for 30 Days or Less
Sec.
752.401 Coverage.
752.402 Definitions.
752.403 Standard for action and penalty determination.
752.404 Procedures.
752.405 Appeal and grievance rights.
752.406 Agency records.
752.407 Settlement agreements.
Subpart E [Reserved]
Subpart F—Regulatory Requirements for Taking Adverse Actions Under the
Senior Executive Service
Sec.
752.601 Coverage.
752.602 Definitions.
752.603 Standard for action and penalty determination.
752.604 Procedures.
752.605 Appeal rights.
752.606 Agency records.
752.607 Settlement agreements.
10. Revise the authority citation for part 752 to read as follows:
Authority: 5 U.S.C. 7504, 7514, and 7543, Pub. L. 115-91.
* * * * *
11. Add subpart A to part 752 to read as follows:
Subpart A —Discipline of Supervisors Based on Retaliation Against Whistleblowers
Sec.
752.101 Coverage.
752.102 Standard for action and penalty determination.
752.103 Procedures.
752.104 Settlement agreements.
§ 752.101 Coverage.
(a) Adverse actions covered. This subpart applies to actions taken under 5 U.S.C.
7515.
(b) Definitions. In this subpart —
Agency—
(1) Has the meaning given the term in 5 U.S.C. 2302(a)(2)(C), without
regard to whether any other provision of this chapter is applicable to the
entity; and
(2) Does not include any entity that is an element of the intelligence
community, as defined in section 3 of the National Security Act of 1947
(50 U.S.C. 3003).
Business day means any day other than a Saturday, Sunday, or legal public holiday under
5 U.S.C. 6103(a).
Day means a calendar day.
Grade means a level of classification under a position classification system.
Insufficient evidence means evidence that fails to meet the substantial evidence standard
described in 5 CFR § 1201.4(p).
Pay means the rate of basic pay fixed by law or administrative action for the position held
by the employee, that is, the rate of pay before any deductions and exclusive of additional
pay of any kind.
Prohibited personnel action means taking or failing to take an action in violation of
paragraph (8), (9), or (14) of 5 U.S.C. 2302(b) against an employee of an agency.
Supervisor means an employee who would be a supervisor, as defined in 5 U.S.C.
7103(a)(10), if the entity employing the employee was an agency.
Suspension means the placing of an employee, for disciplinary reasons, in a temporary
status without duties and pay.
§ 752.102 Standard for action and penalty determination.
(a) Except for actions taken against supervisors covered under subchapter V of title 5,
an agency may take an action under this subpart for such cause as will promote the
efficiency of the service as described in 5 U.S.C. 7503(a) and 7513(a). For actions taken
under this subpart against supervisors covered under subchapter V of title 5, an agency
may take an action based on the standard described in 5 U.S.C. 7543(a).
(b) Subject to 5 U.S.C. 1214(f), if the head of the agency in which a supervisor is
employed, an administrative law judge, the Merit Systems Protection Board, the Special
Counsel, a judge of the United States, or the Inspector General of the agency in which
a supervisor is employed has determined that the supervisor committed a prohibited
personnel action, the head of the agency in which the supervisor is employed, consistent
with the procedures required under this subpart—
(1) For the first prohibited personnel action committed by the supervisor—
(i) Shall propose suspending the supervisor for a period that is not less
than 3 days; and
(ii) May propose an additional action determined appropriate by the head
of the agency, including a reduction in grade or pay; and
(2) For the second prohibited personnel action committed by the supervisor, shall
propose removing the supervisor.
§ 752.103 Procedures.
(a) Non-delegation. If the head of an agency is responsible for determining whether
a supervisor has committed a prohibited personnel action for purposes of § 752.102(b),
the head of the agency may not delegate that responsibility.
(b) Scope. An action carried out under this subpart—
(1) Except as provided in paragraph (b)(2) of this section, shall be subject to the
same requirements and procedures, including those with respect to an appeal, as
an action under 5 U.S.C. 7503, 7513, or 7543; and
(2) Shall not be subject to—
(i) Paragraphs (1) and (2) of 5 U.S.C. 7503(b);
(ii) Paragraphs (1) and (2) of subsection (b) and subsection (c) of 5 U.S.C.
7513; and
(iii) Paragraphs (1) and (2) of subsection (b) and subsection (c) of 5 U.S.C.
7543.
(c) Notice. A supervisor against whom an action is proposed to be taken under this
subpart is entitled to written notice that—
(1) States the specific reasons for the proposed action;
(2) Informs the supervisor about the right of the supervisor to review the material
that is relied on to support the reasons given in the notice for the proposed action;-
and
(3) Provides notice of any right to appeal the action pursuant to section
1097(b)(2)(A) of Pub. L. 115-91, the forums in which the employee may file an
appeal, and any limitations on the rights of the employee that would apply
because of the forum in which the employee decides to file.
(d) Answer and evidence. (1) A supervisor who receives notice under paragraph
(c) of this section may, not later than 14 days after the date on which
the supervisor receives the notice, submit an answer and furnish evidence in
support of that answer.
(2) If, after the end of the 14-day period described in paragraph (d)(1) of this
section, a supervisor does not furnish any evidence as described in that clause, or
if the head of the agency in which the supervisor is employed determines that the
evidence furnished by the supervisor is insufficient, the head of the agency shall
carry out the action proposed under § 752.102 (b), as applicable.
(3) To the extent practicable, an agency should issue the decision on a proposed
removal under this subpart within 15 business days of the conclusion of the
employee’s opportunity to respond under paragraph (d) (1) of this section.
§ 752.104 Settlement agreements.
(a) Agreements to alter official personnel records. An agency shall not agree to erase,
remove, alter, or withhold from another agency any information about a civilian
employee’s performance or conduct in that employee’s official personnel records,
including an employee’s Official Personnel Folder and Employee Performance File, as
part of, or as a condition to, resolving a formal or informal complaint by the employee or
settling an administrative challenge to an adverse action.
(b) Corrective action based on discovery of agency error. The requirements described in
paragraph (a) should not be construed to prevent agencies from taking corrective
action should it come to light, including during or after the issuance of an adverse
personnel action, that the information contained in a personnel record is not accurate or
records an action taken by the agency illegally or in error. In such cases, an agency would
have the authority, unilaterally or by agreement, to modify an employee’s personnel
record(s) to remove inaccurate information or the record of an erroneous or illegal action.
An agency may take such action even if an appeal/complaint has been filed relating to the
information that the agency determines to be inaccurate or to reflect an action taken
illegally or in error. In all events, however, the agency must ensure that it removes only
information that the agency itself has determined to be inaccurate or to reflect an action
taken illegally or in error. And an agency should report any agreements relating to the
removal of such information as part of its annual report to the OPM Director required by
Section 6 of E.O. 13839. Documents subject to withdrawal or modification could include,
for example, an SF-50 issuing a disciplinary or performance-based action, a decision
memorandum accompanying such action, or an employee performance appraisal.
(c) Corrective action based on discovery of material information prior to final agency
action. When persuasive evidence comes to light prior to the issuance of a final agency
decision on an adverse personnel action casting doubt on the validity of the action or the
ability of the agency to sustain the action in litigation, an agency may decide to cancel or
vacate the proposed action. Additional information may come to light at any stage of the
process prior to final agency decision including during an employee response period. To
the extent an employee’s personnel file or other agency records contain a proposed action
that is subsequently cancelled, an agency would have the authority to remove that action
from the employee’s personnel file or other agency records. The requirements described
in paragraph (a) would, however, continue to apply to any accurate information about the
employee’s conduct leading up to that proposed action or separation from Federal
service.
12. In § 752.201, revise paragraphs (c)(4) and (5) and add paragraph (c)(6) to
read as follows:
§ 752.201 Coverage.
* * * * *
(c)* * *
(4) Of a re-employed annuitant;
(5) Of a National Guard Technician; or
(6) Taken under 5 U.S.C. 7515.
* * * * *
13. In § 752.202, revise the section heading and add paragraphs © through (f) to
read as follows:
§ 752.202 Standard for action and penalty determination.
* * * * *
(c) An agency is not required to use progressive discipline under this subpart. The
penalty for an instance of misconduct should be tailored to the facts and circumstances.
In making a determination regarding the appropriate penalty for an instance of
misconduct, an agency shall adhere to the standard of proposing and imposing a penalty
that is within the bounds of tolerable reasonableness. Within the agency, a proposed
penalty is in the sole and exclusive discretion of a proposing official, and a penalty
decision is in the sole and exclusive discretion of the deciding official. Penalty decisions
are subject to appellate or other review procedures prescribed in law.
(d) Employees should be treated equitably. Conduct that justifies discipline of one
employee at one time does not necessarily justify similar discipline of a different
employee at a different time. An agency should consider appropriate comparators as the
agency evaluates a potential disciplinary action. Appropriate comparators are individuals
in the same work unit, with the same supervisor who were subjected to the same
standards governing discipline.
(e) Among other relevant factors, agencies should consider an employee’s disciplinary
record and past work record, including all prior misconduct, when taking an action under
this subpart.
(f) A suspension should not be a substitute for removal in circumstances in which
removal would be appropriate. Agencies should not require that an employee have
previously been suspended or demoted before a proposing official may propose removal,
except as may be appropriate under applicable facts.
* * * * *
14. Amend § 752.203 by revising paragraph (b) and by adding paragraph (h) to
read as follows:
§ 752.203 Procedures.
* * * * *
(b) Notice of proposed action. The notice must state the specific reason(s) for the
proposed action, and inform the employee of his or her right to review the material which
is relied on to support the reasons for action given in the notice. The notice must further
include detailed information with respect to any right to appeal the action pursuant to
section 1097(b)(2)(A) of Pub. L. 115-91, the forum in which the employee may file an
appeal, and any limitations on the rights of the employee that would apply because of the
forum in which the employee decides to file.
* * * * *
(h) Settlement agreements. (1) An agency shall not agree to erase, remove, alter, or
withhold from another agency any information about a civilian employee’s performance
or conduct in that employee’s official personnel records, including an employee’s
Official Personnel Folder and Employee Performance File, as part of, or as a condition to,
resolving a formal or informal complaint by the employee or settling an administrative
challenge to an adverse action.
(2) The requirements described in paragraph (1) should not be construed to
prevent agencies from taking corrective action should it come to light, including during
or after the issuance of an adverse personnel action that the information contained in a
personnel record is not accurate or records an action taken by the agency illegally or in
error. In such cases, an agency would have the authority, unilaterally or by agreement, to
modify an employee’s personnel record(s) to remove inaccurate information or the record
of an erroneous or illegal action. An agency may take such action even if an
appeal/complaint has been filed relating to the information that the agency determines to
be inaccurate or to reflect an action taken illegally or in error. In all events, however, the
agency must ensure that it removes only information that the agency itself has determined
to be inaccurate or to reflect an action taken illegally or in error. And an agency should
report any agreements relating to the removal of such information as part of its annual
report to the OPM Director required by Section 6 of E.O. 13839. Documents subject to
withdrawal or modification could include, for example, an SF-50 issuing a disciplinary or
performance-based action, a decision memorandum accompanying such action, or an
employee performance appraisal.
(3) Corrective action based on discovery of material information prior to final
agency action. When persuasive evidence comes to light prior to the issuance of a final
agency decision on an adverse personnel action casting doubt on the validity of the action
or the ability of the agency to sustain the action in litigation, an agency may decide to
cancel or vacate the proposed action. Additional information may come to light at any
stage of the process prior to final agency decision including during an employee response
period. To the extent an employee’s personnel file or other agency records contain a
proposed action that is subsequently cancelled, an agency would have the authority to
remove that action from the employee’s personnel file or other agency records. The
requirements described in paragraph (h)(1) of this section would, however, continue to
apply to any accurate information about the employee’s conduct leading up to that
proposed action or separation from Federal service.
15. In § 752.401, revise paragraphs (b)(14) and (15), add paragraphs
(b) (16) and revise paragraph (c)(2) to read as follows:
§ 752.401 Coverage.
* * * * *
(b)* * *
(14) Placement of an employee serving on an intermittent or seasonal basis in a
temporary nonduty, nonpay status in accordance with conditions established at the
time of appointment;
(15) Reduction of an employee’s rate of basic pay from a rate that is contrary to
law or regulation, including a reduction necessary to comply with the
amendments made by Public Law 108–411, regarding pay-setting under the
General Schedule and Federal Wage System and regulations implementing those
amendments; or
(16) An action taken under 5 U.S.C. 7515.
(c)* * *
(2) An employee in the competitive service—
(i) Who is not serving a probationary or trial period under an initial
appointment; or
(ii) Except as provided in section 1599e of title 10, United States Code,
who has completed one year of current continuous service under other
than a temporary appointment limited to one year or less;
* * * * *
16. In § 752.402, add the definition for “Business day” in alphabetical order to
read as follows:
§ 752.402 Definitions.
*****
Business day means any day other than a Saturday, Sunday, or legal public holiday under
5 U.S.C. 6103(a).
* * * * *
17. In § 752.403, revise the section heading and add paragraphs (c) through (f) to
read as follows:
§ 752.403 Standard for action and penalty determination.
* * * * *
(c) An agency is not required to use progressive discipline under this subpart. The
penalty for an instance of misconduct should be tailored to the facts and circumstances.
In making a determination regarding the appropriate penalty for an instance of
misconduct, an agency shall adhere to the standard of proposing and imposing a penalty
that is within the bounds of tolerable reasonableness. Within the agency, a proposed
penalty is in the sole and exclusive discretion of a proposing official, and a penalty
decision is in the sole and exclusive discretion of the deciding official. Penalty decisions
are subject to appellate or other review procedures prescribed in law.
(d) Employees should be treated equitably in that conduct that justifies discipline of one
employee at one time does not necessarily justify similar discipline of a different
employee at a different time. An agency should consider appropriate comparators as the
agency evaluates a potential disciplinary action. Appropriate comparators are individuals
in the same work unit, with the same supervisor who were subjected to the same
standards governing discipline.
(e) Among other relevant factors, agencies should consider an employee’s disciplinary
record and past work record, including all prior misconduct, when taking an action under
this subpart.
(f) A suspension or a reduction in grade or pay should not be a substitute for removal in
circumstances in which removal would be appropriate. Agencies should not require that
an employee have previously been suspended or reduced in pay or grade before a
proposing official may propose removal, except as may be appropriate under applicable
facts.
18. Amend § 752.404 by revising paragraphs (b)(1) and (b)(3)(iv), and adding
paragraph (g)(3) to read as follows:
§ 752.404 Procedures.
* * * * *
(b)* * *
(1) An employee against whom an action is proposed is entitled to at least 30
days’ advance written notice unless there is an exception pursuant to paragraph (d) of this
section. However, to the extent an agency in its sole and exclusive discretion deems
practicable, agencies should limit a written notice of an adverse action to the 30 days
prescribed in section 7513(b)(1) of title 5, United States Code. Advance notices of
greater than 30 days must be reported to the Office of Personnel Management. The
notice must state the specific reason(s) for the proposed action, and inform the employee
of his or her right to review the material which is relied on to support the reasons for
action given in the notice. The notice must further include detailed information with
respect to any right to appeal the action pursuant to section 1097(b)(2)(A) of Pub. L. 115-
91, the forums in which the employee may file an appeal, and any limitations on the
rights of the employee that would apply because of the forum in which the employee
decides to file.
* * * * *
(3)* * *
(iv) Placing the employee in a paid, nonduty status for such time as is
necessary to effect the action. After publication of regulations for 5 U.S.C. 6329b, and
the subsequent agency implementation period in accordance with 5 U.S.C. 6329b, an
agency may place the employee in a notice leave status when applicable.
* * * * *
(g)* * *
(3) To the extent practicable, an agency should issue the decision on a proposed
removal under this subpart within 15 business days of the conclusion of the employee’s
opportunity to respond under paragraph (c) of this section.
* * * * *
19. Add § 752.407 to to read as follows:
§ 752.407 Settlement agreements.
(a) Agreements to alter official personnel records. An agency shall not agree to erase,
remove, alter, or withhold from another agency any information about a civilian
employee’s performance or conduct in that employee’s official personnel records,
including an employee’s Official Personnel Folder and Employee Performance File, as
part of, or as a condition to, resolving a formal or informal complaint by the employee or
settling an administrative challenge to an adverse action.
(b) Corrective action based on discovery of agency error. The requirements described in
paragraph (a) of this section should not be construed to prevent agencies from taking
corrective action, should it come to light, including during or after the issuance of an
adverse personnel action that the information contained in a personnel record is not
accurate or records an action taken by the agency illegally or in error. In such cases, an
agency would have the authority, unilaterally or by agreement, to modify an employee’s
personnel record(s) to remove inaccurate information or the record of an erroneous or
illegal action. An agency may take such action even if an appeal/complaint has been filed
relating to the information that the agency determines to be inaccurate or to reflect an
action taken illegally or in error. In all events, however, the agency must ensure that it
removes only information that the agency itself has determined to be inaccurate or to
reflect an action taken illegally or in error. And an agency should report any agreements
relating to the removal of such information as part of its annual report to the OPM
Director required by Section 6 of E.O. 13839. Documents subject to withdrawal or
modification could include, for example, an SF-50 issuing a disciplinary or performance-
based action, a decision memorandum accompanying such action, or an employee
performance appraisal.
(c) Corrective action based on discovery of material information prior to final agency
action. When persuasive evidence comes to light prior to the issuance of a final agency
decision on an adverse personnel action casting doubt on the validity of the action or the
ability of the agency to sustain the action in litigation, an agency may decide to cancel or
vacate the proposed action. Additional information may come to light at any stage of the
process prior to final agency decision including during an employee response period. To
the extent an employee’s personnel file or other agency records contain a proposed action
that is subsequently cancelled, an agency would have the authority to remove that action
from the employee’s personnel file or other agency records. The requirements described
in paragraph (a) would, however, continue to apply to any accurate information about the
employee’s conduct leading up to that proposed action or separation from Federal
service.
20. Revise § 752.601(b)(2) to read as follows:
§ 752.601 Coverage.
* * * * *
(b)* * *
(2) This subpart does not apply to actions taken under 5 U.S.C. 1215, 3592, 3595,
7532, or 7515.
* * * * *
21. Amend § 752.602 by adding a definition for “Business day” in alphabetical
order to read as follows:
§ 752.602 Definitions.
*****
Business day means any day other than a Saturday, Sunday, or legal public holiday under
5 U.S.C. 6103(a).
* * * * *
22. In § 752.603, revise the section heading and add paragraphs (c) through (f) to
read as follows:
§ 752.603 Standard for action and penalty determination.
* * * * *
(c) An agency is not required to use progressive discipline under this subpart. The
penalty for an instance of misconduct should be tailored to the facts and circumstances.
In making a determination regarding the appropriate penalty for an instance of
misconduct, an agency shall adhere to the standard of proposing and imposing a penalty
that is within the bounds of tolerable reasonableness.
(d) Employees should be treated equitably in that conduct that justifies discipline of one
employee at one time does not necessarily justify similar discipline of a different
employee at a different time. An agency should consider appropriate comparators as the
agency evaluates a potential disciplinary action. Appropriate comparators are individuals
in the same work unit, with the same supervisor who were subjected to the same
standards governing discipline.
(e) Among other relevant factors, agencies should consider an employee’s disciplinary
record and past work record, including all prior misconduct, when taking an action under
this subpart.
(f) A suspension or reduction in grade or pay should not be a substitute for removal in
circumstances in which removal would be appropriate. Agencies should not require that
an employee have previously been suspended or reduced in pay or grade before a
proposing official may propose removal, except as may be appropriate under applicable
facts.
* * * * *
23. Amend § 752.604 by revising paragraphs (b)(1) and (b)(2)(iv), and adding
paragraph (g)(3) to read as follows:
§ 752.604 Procedures.
* * * * *
(b)* * *
(1) An appointee against whom an action is proposed is entitled to at least 30
days’ advance written notice unless there is an exception pursuant to paragraph
(d) of this section. However, to the extent an agency in its sole and exclusive
discretion deems practicable, agencies should limit a written notice of an adverse
action to the 30 days prescribed in section 7543(b)(1) of title 5, United States
Code. Advance notices of greater than 30 days must be reported to the Office of
Personnel Management. The notice must state the specific reason(s) for the
proposed action, and inform the appointee of his or her right to review the
material that is relied on to support the reasons for action given in the notice. The
notice must further include detailed information with respect to any right to
appeal the action pursuant to section 1097(b) (2) (A) of Pub. L. 115-91, the
forums in which the employee may file an appeal, and any limitations on the
rights of the employee that would apply because of the forum in which the
employee decides to file.
(2)* * *
(iv) Placing the appointee in a paid, no duty status for such time as is
necessary to effect the action. After publication of regulations for 5
U.S.C. 6329b, and the subsequent agency implementation period in
accordance with 5 U.S.C. 6329b, an agency may place the employee in a
notice leave status when applicable.
* * * * *
(g)* * *
(3) To the extent practicable, an agency should issue the decision on a proposed
removal under this subpart within 15 business days of the conclusion of the
employee’s opportunity to respond under paragraph (c) of this section.
* * * * *
24. Add §752.607 to to read as follows:
§ 752.607 Settlement agreements.
(a) Agreements to alter official personnel records. An agency shall not agree to erase,
remove, alter, or withhold from another agency any information about a civilian
employee’s performance or conduct in that employee’s official personnel records,
including an employee’s Official Personnel Folder and Employee Performance File, as
part of, or as a condition to, resolving a formal or informal complaint by the employee or
settling an administrative challenge to an adverse action.
(b) Corrective action based on discovery of agency error. The requirements described in
paragraph (a) of this section should not be construed to prevent agencies from taking
corrective action, should it come to light, including during or after the issuance of an
adverse personnel action that the information contained in a personnel record is not
accurate or records an action taken by the agency illegally or in error. In such cases, an
agency would have the authority, unilaterally or by agreement, to modify an employee’s
personnel record(s) to remove inaccurate information or the record of an erroneous or
illegal action. An agency may take such action even if an appeal/complaint has been filed
relating to the information that the agency determines to be inaccurate or to reflect an
action taken illegally or in error. In all events, however, the agency must ensure that it
removes only information that the agency itself has determined to be inaccurate or to
reflect an action taken illegally or in error. And an agency should report any agreements
relating to the removal of such information as part of its annual report to the OPM
Director required by Section 6 of E.O. 13839. Documents subject to withdrawal or
modification could include, for example, an SF-50 issuing a disciplinary or performance-
based action, a decision memorandum accompanying such action, or an employee
performance appraisal.
(c) Corrective action based on discovery of material information prior to final agency
action. When persuasive evidence comes to light prior to the issuance of a final agency
decision on an adverse personnel action casting doubt on the validity of the action or the
ability of the agency to sustain the action in litigation, an agency may decide to cancel or
vacate the proposed action. Additional information may come to light at any stage of the
process prior to final agency decision including during an employee response period. To
the extent an employee’s personnel file or other agency records contain a proposed action
that is subsequently cancelled, an agency would have the authority to remove that action
from the employee’s personnel file or other agency records. The requirements described
in paragraph (a) would, however, continue to apply to any accurate information about the
employee’s conduct leading up to that proposed action or separation from Federal
service.
Billing Code: 6325-39-P
[FR Doc. 2019-19636 Filed: 9/16/2019 8:45 am; Publication Date: 9/17/2019]
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